The Judges’ Law Book: A Major Study of John Selden

Asenior scholar once quipped to me when I was weighing topics for my doctoral work: “the goal of a historical doctoral dissertation is to uncover a neglected third-rate thinker and try to pass him off as a second-rate thinker.” Readers unfamiliar with the name of John Selden might be forgiven for thinking that Ofir Haivry’s John Selden and the Western Political Tradition is but another project along similar lines. But one does not have to read far into this weighty tome to realize one’s mistake. Haivry convincingly makes the case that while historians, political theorists, modernity critics, and modernity enthusiasts alike may have long been entranced with the likes of Locke, Hobbes, and Grotius, the great seventeenth-century legal scholar John Selden deserves attention alongside such great names, not merely for the influence of his thought on political events and on contemporaries, but for its intrinsic value and enduring relevance.

To be sure, such a retrieval of a forgotten giant is fraught with perils. In his biography of the famed seventeenth-century polymath, James Ussher, Alan Ford writes, “biographers [of Ussher] … suffer from an immediate and crippling defect: their subject is more learned than they are.” If this is true of Ussher, then it is true a fortiori of Ussher’s contemporary and friend, Selden, whom Ben Jonson hailed as “the law book of the judges of England,” and John Lightfoot as “the learnedest man on earth.” While Ofir Haivry would likely be the first to admit that he is not nearly as learned as his subject, he has clearly taken his task with the seriousness it deserves, marshalling an impressive familiarity with the secondary literature and the thought-world of the seventeenth century, and a thorough and intimate acquaintance with the staggering scholarly output that John Selden produced over five decades of study and statesmanship.

Of course, if the biographer of Selden can scarcely be expected to be as learned as his subject, then surely it would be unreasonable to expect the reviewer of the biographer to be as learned as either. And indeed, I must disclaim any competence to independently examine Dr. Haivry’s use of most of his sources, or interpretations of Selden’s writings. I read this book in order to properly learn for the first time about Selden, whose fame had always reached me (a scholar of the sixteenth century) as a distant rumor, one that I was determined to investigate at last for myself now that a suitable guide to the subject had at last been produced. Haivry aims with this monumental work of scholarship to provide for the first time a thorough examination of the legal and political (and indeed, philosophical and theological) ideas of this “glory of the English nation,” and to set the record straight when it comes to some pernicious and persistent popular and scholarly misconceptions of his thought (chief among the latter is the notion of “Erastianism,” on which more below). I can say that, Haivry has performed his task admirably and judiciously, carefully navigating the complex and treacherous landscapes of seventeenth-century political thought, the English legal tradition, and the bewildering events of the English Civil War, and expounding Selden’s own writings with great care and in great detail. However, other specialists of this period can judge the details of Haivry’s exposition and interpretation. This review shall content itself with identifying for a general readership the key themes that occupy Haivry’s attention, and the areas where further work could be done.

Haivry situates Selden at the center of a threefold crisis in early seventeenth-century England, each prong of which remains startlingly relevant today. The first was a “crisis of knowledge and legitimacy”—the pluralism unleashed by the Reformation, the discovery of the New World, the beginnings of scientific inquiry, and the breakdown of Aristotelianism together had created a situation of profound epistemic uncertainty, leading to a search for new foundations of knowledge and authority. Second was a “crisis of political obligation,” as an increasingly literate and internationally aware population could hardly be expected to simply take the status quo for granted, leading to myriad contract and consent theories to establish a firm basis of political sovereignty and obligation. Third was the collision of traditional English common law with universalizing Continental models of jurisprudence based either on Roman law or on abstract natural-law or natural-rights theories.

Haivry argues that Selden, far from a mere antiquarian and ad hocpolitician, was a heavyweight political theorist who over four decades articulated a coherent response to all three challenges. To the first, Selden offered a robust account of historical rationality, that is, the unfolding of human knowledge, grounded upon a few basic first principles, through the accumulated wisdom of centuries. Such wisdom could be treated as essentially reliable and practically valuable without having to be certain, demonstrative, and unrevisable in the way that many seventeenth-century thinkers were looking for. For the second, Selden eschewed abstract and philosophical theories of political obligation that grounded the state in the theoretically retractable consent of sovereign individuals, preferring concrete historical models of trans-generational obligation rooted in sense of real, though penultimate, national identity. For the third, Selden emerged as the leading defender of the continuing value of the English common-law tradition against the artificial universality of either Roman law or natural-rights approaches. However, unlike some of his predecessors, Selden avoided mythical claims about the unchangeable antiquity of the English common law, arguing on the contrary that its great genius was its continuity through change, its tradition-bound improvisation.

The structure of Haivry’s exposition is straightforward and well-conceived, even if it does require a bit of repetition as key events or writings are touched on again and again in light of different themes. In the first chapter, Haivry offers a sweeping overview of Selden’s life and work and the many political conflicts in which he played a central role from the 1620s to the 1650s. In Chapter Two, Haivry expounds the threefold crisis just outlined. In Chapter Three, Haivry situates Selden’s own answers to the crisis in the context of the other key thinkers of his time, using Hugo Grotius, Thomas Hobbes, and Robert Filmer as foils to draw out the insights and strengths of Selden’s approach. Chapter Four zeroes in on Selden’s ideas about the relationship of law, history, and national identity; in our own age when the concept of the nation has assumed fresh prominence but remains under-theorized, Selden’s insights are particularly worth retrieving. Although Selden’s remarkable Hebraist scholarship comes up throughout the book, Chapter Five is focused specifically on this issue, tracing Selden’s detailed engagement with Jewish sources and why he found them uniquely valuable and intensely relevant for Christian England.

Chapter Six tackles squarely the thorny and oft-misunderstood concept of “Erastianism,” and Selden’s understanding of the role of church and state. Drawing on Chad van Dixhoorn’s recent publication of the minutes of the Westminster Assembly and other archival sources, Haivry reconstructs Selden’s pivotal role in the debates over jure divino Presbyterianism and the authority of Parliament in religious matters. Haivry vigorously contests commonplace distortions of Selden’s “Erastianism” as a kind of cynical subjection of religion to political concerns, arguing that he instead offers an integral model of a simultaneously civil and religious society, in which “law is understood as an inextricable combination of divine and human elements—creating a seamless fabric of the human and divine components of authority.” Chapter Seven offers a brief conclusion that summarizes the preceding themes and highlights Selden’s enduring legacy.

The book is an achievement, and enjoyable to read, yet there are three points where I would have liked to see more nuance or elaboration.

The first of these concerns Haivry’s historical contextualization of Selden and the seventeenth-century trends of which he was a part. It is always a temptation of historical scholars to see their own century of focus in rich and nuanced detail, and everything before or after it as a vague backdrop characterized by generic concepts and monolithic traditions; indeed, to some extent this is inescapable. As a sixteenth-century historian myself, I am quite sure that I do this when it comes to sketching the fourteenth- and fifteenth-century background to the debates and movements that are my own chief interest. But as a sixteenth-century specialist, I am keenly aware of the places where Haivry’s broad-brush sketch of what transpired before the year 1600 falls short in important details or nuances, for instance in some statements about humanism and scholasticism early in Chapter Two. There were also places where Haivry seems to attribute to Selden or his contemporaries distinctive and significant insights that were in fact commonplace enough among earlier thinkers (though this tendency is less marked in Chapter Six, where the striking similarities between Selden and Richard Hooker are frequently noted).

Second, and along similar lines, I found the portrayal of Grotius, Hobbes, and Filmer in Chapter Three to be somewhat one-sided. It is clear enough that Haivry wishes to set these three up as foils who each failed in significant ways, so that Selden can then be introduced as the genius who successfully integrated their insights and avoided their missteps. There may be much truth to this narrative, but Haivry seems to sometimes read these thinkers uncharitably, so as to make Selden’s insights shine brighter in comparison. This is particularly so with Grotius, whose well-documented respect for Selden and by Selden suggests less contrast between their views than Haivry implies.

The final concern is less a complaint than an invitation, since obviously every book has to end somewhere, and this one was already lengthy. However, if the title of the book is John Selden and the Western Political Tradition, the accent certainly falls on the first term. To the modern reader disposed to ask “so what?” there are little more than tantalizing hints (chiefly in the brief Conclusion) as to how Selden’s ideas shaped the subsequent Western political tradition, and even less in the way of normative suggestions of how they ought to shape the Western political tradition today and beyond. Haivry clearly has thoughts on these subjects, and I hope that we may hear more answers to these questions in subsequent work by him, his colleagues, or others inspired by this book to retrieve the great Selden from the dustbins of history. As an introduction and invitation to that important task, though, Haivry’s work deserves much gratitude and high commendation.